Was Djokovic Unethically Blamed and Shamed?

By Dominic Wilkinson, Julian Savulescu and Jonathan Pugh

The decision about whether to grant tennis star Novak Djokovic a visa allowing him to stay in Australia to compete in the Australian Open Championship has generated significant controversy. Last week, the Australian Immigration minister exercised his power to cancel the player’s visa on the grounds of ‘health and good order’ on the basis that it was in the public interest to do so. Djokovic’s lawyers have called the decision ‘patently irrational’ and have announced that they will appeal.

This justification is quite different from the reasons that were initially provided for excluding Djokovic from the country. Oversea travellers to Victoria must either be double vaccinated or have a valid medical exemption to this vaccine requirement. Court documents and Djokovic’s travel declaration form reveal that although he is not vaccinated, he did submit a positive PCR test result for COVID-19 on 16th December. CNN also reports that he received a letter from the Chief Medical Officer of Tennis Australia stating that he had been provided with a medical exemption to vaccination on the basis of this positive result. Evidence later emerged that Djokovic had breached isolation rules by meeting a journalist in the days after this positive test. Djokovic has admitted this, as well as the fact that his immigration forms included a false declaration regarding his travel prior to arriving in Australia.

These facts suggest there could be a number of different justifications for rescinding Djokovic’s visa. One is the false declaration on his immigration forms; countries often take a strict line against false declarations because of the need to ensure that those entering the country complete applications truthfully. Although Djokovic attributes the false declaration to his agent making an honest human error, opponents might argue that countries can be justified in taking a strict liability approach to such errors, and to treating even minor falsehoods as a reason to rescind a visa. However, it is questionable whether such an approach is proportionate to the benefit of ensuring that others complete applications truthfully.

A second justification concerns the validity of Djokovic’s medical exemption, and whether it is in the public interest to allow natural immunity exemptions. There is considerable debate about whether proof of natural immunity should ground a medical exemption to vaccination. This is reflected in conflicting state and federal policies in Australia. Whilst the state government of Victoria recognises prior infection with COVID-19 vaccines as a valid basis for medical exemption, federal guidance from the Australian Department of Health explicitly states that “previous infection with COVID-19 is not considered a medical contraindication for COVID-19 vaccination”. Ultimately, the debate on this point turns on the question of whether natural immunity lowers an individual’s risk of transmission to a similar extent to vaccine-induced immunity. This may be true, since the vaccines are also limited at preventing transmission, particularly for Omicron. If so, then there is little justification for requiring those with strong proof of natural immunity to also undergo vaccination, particularly when the transmission risk of vaccinated individuals and individuals with natural immunity alike could be further managed by regular testing.

A different problem with the validity of Djokovic’s medical exemption concerns the nature of the proof provided. Some media reports have suggested that Djokovic’s test date or result was altered. If this is corroborated, then he should be excluded both on the grounds of misleading/false information on entry, and on the basis of the public interest, since he potentially poses a higher risk of passing on coronavirus.

However, in the court hearing today, Djokovic’s lawyer claimed none of these was the actual justification for rescinding Djokovic’s visa. Instead, it was claimed that the visa was rescinded because Djokovic’s presence in Australia would encourage those opposed to COVID vaccination.

This is a quite different kind of ‘public interest’ argument. If this is correct, it represents a profound and disquieting escalation in the blaming and shaming of those who decide not to vaccinate.

There are good reasons for governments like Australia to encourage COVID vaccination. There are also good reasons to call out, criticise, and limit vaccine misinformation. There might be a basis to deny (or cancel) a visa for someone who was actively spreading false and damaging information within the community. There are past examples of speakers inciting racial hatred or violence who have been justifiably barred from entry into a country.

But it is ethically dubious to be barring a sportsman from entering a country on the basis that he has in the past made statements discouraging vaccination. On the contrary, disproportionate and excessive actions like this provide oxygen to the anti-vaccination fire. They substantiate the claim that governments in their desire to bring an end to the pandemic will ride roughshod over civil liberties.

It might be justified to stop Djokovic from playing in the Australian open and to send him home. But not for this reason.

  • Facebook
  • Twitter
  • Reddit

5 Responses to Was Djokovic Unethically Blamed and Shamed?

  • Géraud says:

    Thanks Jonathan for this piece.

    On a January 5 press article you can find on skynews dot com, that reads:

    “The nine-time Australian Open champion was granted permission by the Australian Technical Advisory Group on Immunisation (ATAGI) to enter Australia after which an independent medical panel established by Tennis Australia gave Djokovic the green light to play in the tournament.

    Tennis Australia CEO Craig Tiley has defended the integrity of the process, revealing Djokovic was one of 26 “blind applicants” to be assessed by the panel before moving on to a second panel set up by the government.

    Prime Minister Scott Morrison deflected questions about Djokovic’s exemption on Wednesday, saying it was “a matter for the Victorian government”.

    “They have provided him with an exemption to come into Australia, and so then we act in accordance with that decision,” he told reporters.

    Asked further whether he believed it an appropriate move, Mr Morrison said that was the process in place.

    “States provide exemptions for people to enter on those basis, and that’s been happening for the last two years. So there’s no change to that arrangement.

    So it would appear that the situation is in fact quite simple:
    – if Jokovic provided forged or otherwise untruthful documents to Tennis Australia, so that the decision to grant him a medical exemption was misled, then it was morally justified to rescind his visa;
    – but if on the other hand the documents were truthful and the process fair, then there is an *inconsistency* in the combined legal frameworks of the state of Victoria and Australia, as the former allowed him to play at the Open (because according to the state of Victora, a recent infection is a sufficient reason for a medical exemption), while the latter disallowed him to play at the Open (because according to the Federal government, a recent infection is not a sufficient reason for a medical exemption — it’s in fact irrelevant).

    A minor variation to the second bullet point, which might be true instead, is the possibility that the state of Victoria (and maybe some folks in the Federal government) *believed* that the combined legal frameworks supported the notion that evidence of a recent infection sufficed to play at the Open, and communicated this belief to Jokovic.

    So the question boils down to:

    “Was it morally acceptable to rescind Jokovic’s visa, blame and shame him, in spite of:

    a) the possibly inapplicable (if jointly inconsistent) legal frameworks,

    or in spite of:

    b) a possible misleading information from the state of Victoria and/or officials in the Federal government?”

    The answer seems a clean No to me. That is, rescinding his visa might be justified (if supported by law, perhaps after some process of overcoming the inconsistency), but if (a) or (b) is true, and if the evidence Jokovic presented was truthful and the process fair, Jokovic is owed more than just a kick in the butt. Public apologies and compensations could be in order.

  • P. D. Van Pelt says:

    This is not too complicated. The tennis star is just another vaccine-phobic naysayer. He believes his station in the game confers privilege. Such arrogance is self-destructive and dangerous to everyone. He has fashioned his own contextual reality around his belief. However, as Davidson put it, belief is a propositional attitude, and , in this instance, decidedly anti-social…

    • Géraud says:

      Opinions, beliefs and arrogance are hardly relevant to the legal and ethical justifications at stake, unless one goes for the far-fetched conclusion that Jokovic’s behaviour jeopardize public order and security. This idea is ludicrous, and it does little to hide that in Australia, the federal state and the federated states are a bit confused.

  • Pavel Novak says:

    The western tradition of human rights doctrine is about individual. Therefore neither public order nor public interest are the case.
    Because in the interest of public wellfare we can proceed everything.
    But the real question is if the anti-covid measures are proportionate to the threat that derives from this illness. This question so far has not been answered in the debate. Also the courts are not courageous enough to decide it.
    It is more comfortable for the judges to talk about formal view.
    Behind the expert and non-human debate about contraindications the essential issue dissappears.
    And this issue is human freedom that is ruined by the public interest.

  • Pavel Novak says:

    Imagine that all the remaining participants of Australian Open would stand by Djokovich and refuse to play at the tournament unless Djkovich will be allowed. What would you do then?